Arizona Corp. Commission v. Gibbons
| Citation | 344 P.2d 167,86 Ariz. 210 |
| Decision Date | 24 September 1959 |
| Docket Number | No. 6529,6529 |
| Parties | , 31 P.U.R.3d 469 ARIZONA CORPORATION COMMISSION, and Intervenor C. R. Maddux, Appellants, v. G. L. GIBBONS, Appellee. |
| Court | Supreme Court of Arizona |
Robert Morrison, Atty. Gen., and Frederick E. Kallof, Asst. Atty. Gen., and Langmade & Sullivan, Phoenix, for appellants.
Evans, Kitchel & Jenckes, Earl H. Carroll, Phoenix, for appellee.
This is a joint appeal by the Arizona Corporation Commission, and C. R. Maddux, from a judgment of the superior court of Maricopa County, vacating and setting aside an order of the Commission granting an amended certificate of convenience and necessity to intervenor Maddux to haul 'ore and ore concentrates' state-wide within Arizona. G. L. Gibbons, a certificated common carrier, was one of the plaintiffs below and is the sole appellee here. We shall refer to the individual parties by surname, and the regulatory body as the Commission.
The facts necessary for a consideration of the issues involved may be stated as follows:
Prior to the year 1955, the Commission had issued to Maddux a certificate of convenience and necessity authorizing a limited transportation of 'ores and are concentrates' (principally under contract), but confined to certain areas in Mohave and Yuma counties. On September 6, 1955, Maddux filed with the Commission an application for an amended certificate for a state-wide privilege of handling ores and ore concentrates. After proper notice a hearing was had thereon on September 21, 1955, and the matter taken under advisement.
In the year 1953 the Commission had issued to Gibbons a certificate or certificates of convenience and necessity authorizing a limited transportation of 'ores and ore concentrates' within a radius of 25 miles of Patagonia and within a radius of 50 miles of Tucson. On September 17, 1955, Gibbons filed with the Commission an application for an amended certificate for a state-wide privilege of handling such products; a hearing was had thereon on October 19, 1955, and the matter taken under advisement.
Later, at an executive meeting of the Commission, both the Maddux and Gibbons applications for state-wide certificates were granted, and the Secretary of the Commission was directed to issue the necessary amended certificates. The Secretary, in carrying out the Commission's instructions in preparing the certificates, somehow dated the Gibbons certificate December 1, 1955, and dated the Maddux certificate December 2, 1955. This consecutive dating forms the basis for certain contentions which will be hereinafter noted. It should also be stated that at approximately the same time, similar state-wide certificates to haul ore and ore concentrates were issued by the Commission to James Bond and Al Mann; however, the validity of these latter certificates is not here drawn in question.
A copartnership, d. b. a. the R. E. Canion Construction and Trucking Company, was, on November 16, 1955, issued a corrected certificate of convenience and necessity to transport state-wide, over the public highways, 'sand, tock, gravel, road mix, plant mix, and earthy materials' (emphasis supplied). This copartnership joined with Gibbons in opposing granting by the Commission of a state-wide certificate to Maddux to transport ores and ore concentrates, this upon the theory that the words 'earthy materials' contained in their certificate--which was a renewal of a prior certificate--embraced ores and ore concentrates. After the Maddux certificate had been granted, Gibbons and the Canions joined in an application for rehearing on the grounds that (1) there was insufficient evidence of the need for operating rights granted to Maddux; and (2) there were common carriers duly certified, including these protestants, willing and able to serve the territory, and the Commission had failed to observe the requirements of section 66-506, A.C.A.1939 ) by first offering them an opportunity to furnish such service. While this application for rehearing was not specifically ruled upon, it was denied by operation of law; and such application necessarily formed the basis for the subsequent court action. See A.R.S. § 40-253, subd. C.
Thereafter Gibbons and the Canion co-partnership, as plaintiffs, timely filed in the superior court of Maricopa County a civil complaint against the Corporation Commission, asking that the Maddux certificate dated December 2, 1955, be cancelled and held for naught. The court permitted Maddux, who it was shown was the real party in interest, to intervene as a defendant. At the trial no evidence was offered by plaintiffs in support of the first ground for rehearing. Furthermore the court, invoking the ejusdem generis rule, held, as a matter of law, that the phrase 'earthy materials' contained in the Canion certificate 'does not include ores and concentrates'. The copartnership did not appeal from this ruling, nor has it made an appearance as an appellee in the instant case.
The issue, therefore, was finally narrowed down to the proposition--upon...
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